New mandatory duty on employers to prevent sexual harassment in the workplace – are you ready?
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In July 2021, the Government published its response to a consultation on sexual harassment in the workplace and pledged to introduce measures aimed at preventing instances of such conduct. This included the introduction of a mandatory duty on employers to prevent sexual harassment in the workplace. A defence would be available to employers who had taken “all reasonable steps” to prevent such acts taking place.
Legislation was passed at the end of 2023 to introduce the changes, which will take effect in October this year. In addition to a positive duty on employers to take reasonable steps to prevent sexual harassment, Employment Tribunals will also be given the power to uplift compensation for sexual harassment by up to 25% if the employer is found to have failed in its duty to prevent the conduct.
It remained unclear whether a new statutory Code of Practice would be implemented by the EHRC in response to latest legislative developments. However. the EHRC has now confirmed that the existing Code of Practice and technical guidance will be updated to incorporate guidance on the new statutory duty. This will be subject to full consultation, a time frame for which has not yet been announced.
This will be welcome news for employers seeking further direction on what steps they should be taking to demonstrate compliance with the new statutory duty.
What steps should employers be taking now?
With less than nine months to go for this duty to apply, it would be a mistake to wait for EHRC’s guidance. Most employers already have a myriad of initiatives to reduce sexual harassment, not least to avail themselves of the reasonable steps defence in harassment cases.
Existing steps should be evaluated and built upon because, unlike the reasonable steps defence, this is a positive duty on employers. Every applicant will plead that this duty was not taken seriously, leaving the employer to show the continuing work they are doing in this area.
One size will not fit all employers, and much will depend on the current culture and track record. For all employers, it will require a multi-dimensional approach, and one that instils confidence that complaints of this nature will be taken seriously if reported. It could include:
- A strong message from management about the zero-tolerance culture and the high standards of conduct expected from all employees.
- Analysis of existing data to identify weak areas in need of improvement.
- An annual staff survey to ascertain whether employees feel confident to report incidents, and if not why – this would allow employers to measure progress year-on-year.
- Refreshed, mandatory training to all staff which is tailored to the different populations: senior management, line managers, HR, new joiners. Employers should keep a record of the training delivered, and those who attended.
- Specially trained members of staff who act as ambassadors for anyone who wants to chat about sexual harassment on a confidential basis. The identities of those individuals, and how they can be contacted should be widely known.
- A review of confidentiality arrangements.
- Regular evaluation of anti-harassment/dignity at work policy – employers should ask themselves if the policy is effective, robust and accessible.
- A step plan to demonstrate to a tribunal everything that has been done to eliminate sexual harassment.